Maytag et al. v. Rural Municipality of Hanover et al.

J.-The plaintiffs brought this action to recover damages from the defendants for injury to certain lands and loss of crop thereon caused by the flooding of the lands in the early part of July, 1928, which flooding, the plaintiffs allege, resulted from (1) the neglect of the defendant municipalities to maintain and keep in repair, as required by statute, the drainage ditches protecting and serving the lands in question, and (2) the wrongful act of the individual defendants in obstructing the flow of water in the main drainage ditch by constructing a dam therein.

The plaintiff Maytag is the owner of the lands in question, namely, sections 2, 13 and 23 in Tp. 7, R. 4, E. of the principal meridian; while the plaintiff McMurdo in his tenant, and the plaintiffs Friessen and Thiessen are sub-tenants. These lands are situated within Drainage District No. 5, part of which district is within the R.M. of Hanover, and part within the R.M. of de Salaberry. The drainage works affecting these lands are:

Opposite the place where the waters of the coul6e entered the ditch, a dyke or embankment, three or three and a half feet high, had been raised on the north side of the ditch to intercept the waters and turn them westward along the ditch.

These ditches were built by the Government of Manitoba in 1907, and were intended to have, and did have, a capac- A ity of a peak load of 25 or 26 cubic second feet. At the time the ditches were built the country was practically un- J. settled. With the settlement of the country, however, the cultivation of the land, and the construction of roads and ditches, the flow of the waters into the watershed was greatly accelerated and the volume thereof was also augmented by the Davidson drains, which drained an additional 100,000 acres.

During the last of June and the first part of July, 1928, the section of the country in which Drainage District No. 5 is situate, was subjected to unprecedented rains which were particularly heavy on July 4, 5 and 6. According to the Meteorological. Department, the rain falling on July 6 amounted to 1-61 inches, while the total rainfall for June was 3- inches, and for July 4-44 inches. Witnesses state that it was the worst flood in forty-seven years. By July 7 the watershed, of which the mouth was Tourond Coulbe, was full. Ditch "A'" was full and overflowing, but the dyke and the dump of the road on the north side of Ditch " A " were preventing the bulk of the waters from Tourond Coulge from continuing their natural direction to the northwest, with the result that the waters followed the ditch westward for a distance of half a mile and then flowed over it to the southwest on to the lands of the individual defendants. To save their crops from being drowned out, these defendants, on July 7, built a dam across Ditch " A " just west of the mouth of the coul6e, and also cut a number of openings five or six feet wide and two or three feet deep in the dyke and road grade, so that the water would be able to cross the ditch and the road and continue its natural course to the northwest. The distance of the most easterly of these cuttings from the most westerly was 100 to 150 feet, and one witness testified to seeing a volume of water, 100 feet wide and 5 feet deep, pouring over the road. Some of these waters in the natural course of events would have crossed Ditch " D5 ", but the R. M. of Hanover, in order to protect its road grade along the ditch, built up its road, which it had a right to do. This also had the effect of sendmore of the water north on to section 23, the most northerly of the plaintiffs' lands.

As to the effect of the damming up of Ditch " ", we have the evidence of the plaintiff McMurdo, who gave the following testimony:- Then we have the evidence of Bowman, Chief Engineer of the Provincial Reclamation Branch of the Department of Public Works, and Affleck, District Engineer, who* testified that the result of the failure of the municipality to keep the ditches in repair was to lessen their efficiency by 50 per cent. They also gave this further important evidence, that even if the ditches had been properly maintained at their original capacity, they would have been able to take care of only one-tenth of the water coming upon these lands during the flood conditions that existed in July, On July 11, the R. M. of Hanover blew up the dam which the individual defendants had erected in Ditch " A ", and the evidence is that immediately thereafter the water began to subside.

The water, however, had been lying on the plaintiffs' lands for a sufficient length of time to ruin their crops. The learned trial judge found in favour of the plaintiffs against all the defendants and fixed the loss by flooding at $650 for section 2, and $2,000 for section 23. In addition he allowed $100 for some small items. He held that there was a legal obligation on the defendant municipalities to keep the ditches in proper repair and that they had failed to do so. He also held the individual defendants liable for the damage caused by their blocking up of Ditch "A." The loss he apportioned as follows: to the individual defendants $831.25; to the R. M. of Hanover $1,412.50; to the R. M. of de Salaberry, $506.25.

No apportionment was made among the plaintiffs, as they had informed the court that they would agree among themselves as to their respective shares of any damage awarded.

as against the individual defendants, but reversed it as against the rural municipalities on the ground that it had RURA not been proved that the flooding was due to the failure MurICIof the municipalities to maintain the ditches in repair. Before us the main question was as to the liability of the municipalities, under the existing legislation, to maintain Lamont J. the ditches in proper repair, and we were urged to determine that question.

The statutory provisions upon which the plaintiffs rely are sections 45 and 46 of the Land Drainage Act, R.S.M., 1913, cap. 56. They read as follows:- 45. Where a drainage work does not extend beyond the limits of one municipality, it shall be maintained and kept in repair by such municipality in the manner provided for in this Act, and if such municipality fail to do so the Municipal Commissioner may do, or cause to be done, everything necessary to maintain and keep in repair such drainage work, and collect the expense thereof from such municipality from time to time by levies made in accordance with " The Municipal Commissioner's Act." 46. Any drainage work constructed under the provisions of this Act, or any Act or Acts for which this Act is substituted, which is continued through more than one municipality, or which is commenced in one municipality and continued thence into any other municipality or municipalities, shall, after the completion thereof, be maintained by the former municipality from the point of commencement thereof to a point at which the drainage work crosses the boundary line into another municipality and by every other municipality in like manner through or into which the drainage work is continued, at the expense of the lands in any way assessed for the construction thereof and in the proportion determined by the Minister in his report and assessment for the original construction of the work; and for the purpose of collecting the cost of such maintenance each and every municipality interested shall have all the powers and authority for the levying and collection thereof against the lands liable therefor, as aforesaid, as provided for the levying and collection of ordinary municipal rates by " The Assessment Act " and amendments thereto, and, in case of default by any such municipality, the Municipal Commissioner may do or cause to be done everything necessary to maintain and keep in repair such drainage work, and collect the expense thereof from such municipality from time to time by levies made in accordance with "The Municipal Commissioner's Act."

I do not find any difference in meaning between the phrase " shall be maintained " in section 46 and " shall be maintained and kept in repair " in section 45, and the question is, do these words impose upon a municipality the legal obligation of keeping the ditches within its border in repair, and, if so, does an action for damages lie at the instance of an individual injured by the failure of the municipality to perform that obligation?

It is now well established that the liability of a public body to a person injured by the non-performance of a .

statutory duty, must, in each case, in the last resort, depend upon the intention of the legislature to be gathered from the statute "as a whole, interpreted in the light of such circum- stances as may properly be considered, and according to the canons of construction properly applicable."

Duff J., in City of Vancouver v. McPhalen (1).

Liability for an omission to do something depends entirely upon the extent to which a duty is imposed to cause that to be done. It may be that the statute clearly imposes the duty or it may be, as pointed out by McCardie J., in Rex v. Marshland Smeeth and Fen District Commissioners (2), that the statute indicates with reasonable clearness that there shall be no civil remedy at all for a person injured by a breach of the statute, or it may be that the statute provides a particular method, otherwise than by action, of claiming damages for breach of the statutory duty. In each case the statute must be examined to ascertain the legislative intention. There are, however, certain general rules which, I think, are applicable to all cases. One is that laid down by Vaughan Williams, L.J., in Groves v. Lord Wimborne (3), where his Lordship says:- Another is the rule of construction stated by Blackburn J. in Mersey Docks Trustees v. Gibbs (4), as follows:- The leading authorities on the point involved in this action, in so far as the liability of the municipalities for non-feasance is concerned, were all reviewed in this court in the case of City of Vancouver v. McPhalen (5).

In that case the statute, in the interest of the public of which the plaintiff was one, imposed a duty upon the municipality to keep its streets in repair. In going along the sidewalk the plaintiff tripped over a loose plank and was injured. The municipality was held liable on the ground stated in the head-note, as follows:- Other instructive authorities are the recent cases of Blundy, Clark & Co. v. L. & N.E. Ry. Co. (1) in which the English authorities are again reviewed, and Pierce v. Rural Municipality of Winchester (2), in which the municipality was held not to be liable for the non-repair of its drains under section 740 of the Municipal Act, as the plaintiff was not a person for whose benefit the duty of maintaining the ditch in repair was imposed on the municipality.

In the case before us the statute provides for the maintaining of the ditches by the municipality, in clear and explicit language. They are to be maintained for the benefit of the owners of the lands of the drainage district in which the lands are situate. The owners of these lands have, therefore, a special and particular interest beyond the rest of the public in having the ditches maintained, and provision for the securing of adequate means for that purpose is to be found in the statute. If, therefore, the plaintiffs, as the owners of the lands in question or the crops thereon, have suffered loss by the non-performance by the municipalities of their statutory duty, they are, in the absence of anything in the statute shewing a contrary intention, entitled to maintain an action of damages for such loss.

Is there anything in the statute from which a contrary legislative intention can reasonably be inferred?

Two matters are suggested, first, that the statute provides that in case of failure by the municipality to keep the ditches in repair the Municipal Commissioner may maintain them and collect the expenses from the municipality, and second, that the history of the legislation justifies the inference that it was not intended to impose liability on the municipality.

I shall deal with these two together.

By the Act of 1893 the responsibility for both the construction and the up-keep of drainage ditches rested upon the municipalities and it was expressly enacted that the municipality should be liable in pecuniary damages to the person who, or whose property, was injuriously affected by the municipality's neglect or failure to keep the drainage works in repair. It was, however, soon apparent that many of the municipalities were unequal to furnishing the money required for necessary drainage purposes and that in many cases a district which it was advisable to drain by a single drainage system was not confined to the lands of one municipality.

The Legislature, therefore, in 1895, repealed the Act of 1893 and created drainage districts which commonly included lands in several municipalities.

In these districts the drains were constructed by the Provincial Government but at the expense of the lands of the drainage districts, through debentures issued against -them. The amount for which each piece of land was liable was fixed by the Minister of Public Works in proportion to the estimated benefits accruing to each from the construction of the works. No provision was made in the Act for maintenance after construction, and the only connection the municipality had therewith was the collection of the debenture indebtedness from the lands burdened therewith.

Apparently realizing the futility of constructing drainage ditches by the Government unless these ditches were kept in reasonable repair, the Legislature, in 1898, imposed the duty of maintaining them upon the municipalities, they being doubtless considered as the most convenient instrumentality at hand for the purpose. The Act, however, provided that the cost of these repairs should be borne by the lands of the drainage district, and it authorized the municipality to levy and collect the pro rata share which the lands situate in the municipality should bear. In its practical working out the legislation did not secure the maintenance of the ditches. In his evidence Mr. Bowman, speaking of the provision imposing the duty of maintenance on the municipalities, said that the clause in the Act had been a dead letter ever since it had been enacted; that the municipalities generally had not carried it out for the reason that they had neither the men nor the equipment to do so. He pointed out that the maintenance of the larger ditches called for dredging machinery which the municipalities did not have.

Generally speaking, therefore, where the ditches had been repaired, the repairs had been made by the Reclamation Branch at the request of the municipalities. Whether it was because this state of affairs existed in 1913, or for some other reason, the Legislature in that year amended the Land Drainage Act by adding to sections 45 and 46 the clause giving the Municipal Commissioner a discretionary right to make the repairs.

Although the Act of 1893 contained an express provision giving a right of action for breach of the statutory duty to repair, and the Act of 1898, which reimposed the duty upon the municipality, contained no such express provision, and although the amendment of 1913 gave discretionary power to the Municipal Commissioner to make necessary repairs, I am unable to see in these or any other statutory enactment any indication of a legislative intention that the municipality was not to be held liable for breach of its duty to a person for whose benefit the ditches were to be maintained, and who was injured by such breach. The Act of 1893 was repealed and the drainage system entirely altered by the Act of 1895. The imposition, in 1898, of the duty to maintain the ditches constructed by the Government under the new system was a new obligation placed upon the municipalities which carried with it a liability to the individual, unless something to the contrary appeared. In the legislation of 1898 nothing is found indicating an intention that the municipalities were not to be subject to that liability. In enacting the amendment of 1913 the Legislature had an opportunity of relieving the municipalities from the duty of maintenance and placing that obligation on the. provincial government. This it did not do. All it did was to give the Municipal Commissioner a discretionary power to repair if the municipalities failed to do so.

Even when the Commissioner exercised his 8.C.R.]

powers and made repairs he was authorized to collect the expense thereof from the municipalities. This, to my mind, is very far from indicating a legislative intention that the municipalities were to be relieved from liability to an individual injured by their failure to perform their statutory duty. In my opinion, therefore, the municipalities are liable for loss suffered by their failure to maintain these ditches.

What portion of the plaintiffs' loss due to the flooding of their lands resulted from the omission of the municipalities, or either of them, to maintain the ditches in repair? In determining this question we must take into consideration the unprecedented character of the rainfall. Mr. Mueller, the Reeve of the R. M. of Hanover, testified to losing half of his crop, and other farmers testified to losing a considerable part of theirs, as a result of the rains-without any flooding from the ditches. The learned trial judge held that 25 per cent. of the damage was due to the rain alone. Then we must consider the evidence of the engineers that even if the ditches had been in proper repair they could not have carried off more than 10 per cent. of the water during the flood. The municipalities cannot be held liable for the inadequacy of the drainage system. In view of the evidence of the plaintiff McMurdo that, while without the flood he would have lost a certain percentage of his crop due to the rains, the bulk of his loss was due to the flood, and his evidence that there was no flood until after Ditch " A " had been blocked up and a passageway for the waters of Tourond Coul~e cut across the road; and in view of the finding of the trial judge that, after the damming up of Ditch " A," " practically all the water from the coul6e went north over the plaintiffs' and other lands while the dam was in, and very little water went down Ditch "A," from the coulde," it is difficult to escape the conclusion that the flooding, and therefore the damage, was due to the damming of Ditch " A," the inadequacy of the drainage system and the unprecedented character of the rain storms, rather than to the non-repair of the ditches. How could the non-repair of Ditch " A " possibly cause the plaintiffs any damage? From the time the dam was erected by the individual defendants until it was blown up on July it could make no difference to the plaintiffs whether the ditch was out of repair or in repair, the waters from the coul~e could not flow down it on account of the dam. Yet these were the very days in which the damage was done by the flood waters lying on the plaintiffs' land, and the evidence is that immediately the dam was taken out the waters began to go down. The plaintiffs' action, therefore, so far as it is founded upon the failure of the municipalities J. to keep Ditch " A " in repair, must fail, and, as that ditch is the only one within the municipality of de Salaberry, the action against that municipality should be dismissed on that ground alone. Apart from that, however, I agree with the judges of the Court of Appeal in thinking that the plaintiffs have not shewn that any of the damage which they suffered arose from a failure to keep the ditches in repair. Much damage had already been done by the rains but, in my opinion, the evidence is conclusive that the bulk of the damage was caused by the flood from Tourond Coul6e, caused by the damming up of Ditch " A," for which the individual defendants are responsible; and by the inadequacy of the drainage system to drain lands lying as low as those of the plaintiffs.

I also agree that there is nothing in the evidence to shew any obligation upon the Municipality of Hanover, as part of its duty to repair, to fill in the washout on the road south of section 23. The small quantity of water which in any event would get on to the plaintiffs' land through that opening, as well as the small quantity that might have been carried away by Ditch " D " had it been in proper repair, would be inappreciable in comparison with the volume of the flood waters which did the damage.

The appeal, in my opinion, should be dismissed with costs.

W. H. August.